| Matter of James A.-S. v Cassandra A.-S. |
| 2013 NY Slip Op 03995 [107 AD3d 703] |
| June 5, 2013 |
| Appellate Division, Second Department |
| In the Matter of James A.-S.,Appellant, v Cassandra A.-S., Respondent. |
—[*1] Hugh B. Ehrenzweig, White Plains, N.Y., for respondent. Robert Michael, Elmsford, N.Y., attorney for the children.
In related family offense proceedings pursuant to Family Court Act article 8 andcustody and visitation proceedings pursuant to Family Court Act article 6, the fatherappeals (1) from an order of the Family Court, Westchester County (Greenwald, J.),dated December 23, 2011, which, after a hearing, inter alia, denied his family offensepetitions, and (2) from so much of an order of the same court, also dated December 23,2011, as, after a hearing, denied his petition for sole physical custody of the parties'children and granted the mother's cross petition for sole physical custody of the parties'children.
Ordered that the first order dated December 23, 2011, is affirmed, without costs ordisbursements; and it is further,
Ordered that the second order dated December 23, 2011, is reversed insofar asappealed from, on the facts and in the exercise of discretion, without costs ordisbursements, the mother's cross petition for sole physical custody of the subjectchildren is denied, the father's petition for sole physical custody of the subject children isgranted, and the matter is remitted to the Family Court, Westchester County, for furtherproceedings consistent herewith, to establish an appropriate visitation schedule for themother and, thereafter, to issue a permanent visitation order; and it is further,
Ordered that, pending further order of the Family Court, Westchester County, themother shall have unsupervised visitation with the children the first three weekends ofevery month from Friday at 6:00 p.m. through Saturday at 7:00 p.m. and shall have theright to exercise mid-week dinner visits every Wednesday from after school or day careuntil 7:00 p.m., or other times as the parties may agree, provided that the children shallnever be left alone with Thomas Sherlock; and it is further,[*2]
Ordered that the father shall provide the motherwith all information pertaining to the children's health, education, welfare, andextracurricular activities, and shall provide the respective schools, doctors, and activitycoordinators with appropriate documentation authorizing the release of that informationto the mother.
The parties were married in October 2005 and have two young daughters. After theparties separated, the mother left the parties' children in the father's care, and beganresiding with a man named Thomas Sherlock. The father subsequently petitioned for solelegal custody of the children and separately filed family offense petitions against themother. The father contended, among other things, that the mother was in a relationshipwith Thomas Sherlock and that Sherlock posed a threat to the safety and well-being ofthe subject children. Specifically, the father asserted that Sherlock, who is 19 years olderthan the mother, had engaged in an inappropriate relationship with the mother beginningafter Sherlock first contacted her in an internet chatroom when the mother was only 12years old. The father further asserted that Sherlock was the subject of a founded report inconnection with allegations that he engaged in sexually abusive acts with his formerstepdaughter when she was 14 years old. The father testified that, given the mother'srelationship with Sherlock (they were engaged to be married at the time of the hearing),the children were consistently exposed to him and routinely left alone in his care.
The mother cross-petitioned for sole physical custody of the subject children, and ahearing was held. The mother acknowledged that she first came into contact withSherlock in an internet chatroom when she was 12 years old in the 1990s, and that thetwo met in person at a doughnut shop when she was approximately 16 years old. Themother testified that she and Sherlock stayed in contact and continued to maintain arelationship until the present day.
Sherlock also testified at the hearing, and although he acknowledged forming arelationship with the mother when she was 12 years old, he asserted that it did notbecome sexual until after she turned 18 years old. Sherlock also denied sexually abusinghis former stepdaughter. Sherlock additionally claimed that he was never left alone withthe subject children and that he only occasionally would help to feed them.
However, a forensic mental health evaluation prepared by a psychologist affiliatedwith Westchester Jewish Community Services substantiated the father's claim that afounded report had been filed against Sherlock, in which Sherlock was alleged to haveengaged in inappropriate sexual acts with his then 14-year-old stepdaughter.Furthermore, the evaluation revealed that both the mother and Sherlock exhibited a"dismissive attitude" with regard to Sherlock's inappropriate relationship with the motherwhen she was 12 years old and to the founded report of Sherlock's inappropriate sexualbehavior with his then 14-year-old stepdaughter. The evaluation concluded that "thepresence of Mr. Sherlock in [the mother's] home . . . renders [the mother]not suitable for physical residence."
After the hearing, the Family Court denied the father's family offense petitions,denied his petition for sole physical custody of the subject children, and granted themother's cross petition for sole physical custody. With respect to the issue of custody, thecourt determined that the mother was "marginally the better suited parent." The courtnevertheless noted that there was "cause for concern regarding Mr. Sherlock and hisinteraction with the subject children." The court concluded that "[b]ased on the foundedreport of abuse against Mr. Sherlock [and] his questionable judgment in, at one point,maintaining a seemingly inappropriate relationship with a minor . . . thisCourt finds that it is in the best interests of the children that Mr. Sherlock remain awayfrom the subject children at all times" (emphasis added). Accordingly, the FamilyCourt directed that the mother "shall not permit the Subject Children to be in thepresence of Mr. Thomas Sherlock unless the subject children are supervised at all timesby the Respondent or any other adult approved by the Respondent/Mother." The fatherappeals.
Since the father failed to establish, by a fair preponderance of the evidence, theallegations contained in his family offense petitions, the Family Court properly deniedthe father's family offense petitions (see Family Ct Act § 812 [1]; seealso Matter of Cooper v Robertson, 97 [*3]AD3d743, 744 [2012]; Matter ofFoxworth v DeJesus, 74 AD3d 1064, 1064 [2010]). However, under thecircumstances of this case, the Family Court should have granted the father's petition forcustody and denied the mother's cross petition.
The essential consideration in any custody dispute is the best interests of the children(see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). In determining the bestinterests of the children, the court must evaluate the totality of the circumstances (seeid. at 171; Nicholas T. vChristine T., 42 AD3d 526, 527 [2007]; Matter of Berrouet v Greaves, 35 AD3d 460, 461 [2006]).This Court's authority in custody determinations is as broad as that of the hearing court(see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]), andwhile we are mindful that the hearing court has an advantage in being able to observe thedemeanor and assess the credibility of witnesses, we "would be seriously remiss if,simply in deference to the finding of a Trial Judge," we allowed a custody determinationto stand where it lacks a sound and substantial basis in the record (Matter of Gloria S.v Richard B., 80 AD2d 72, 76 [1981]; see Matter of Moran v Cortez, 85 AD3d 795, 796 [2011];Matter of Marrero vCenteno, 71 AD3d 771 [2010]; Matter of Larkin v White, 64 AD3d 707, 708-709 [2009]).
Here, the Family Court's award of sole physical custody to the mother lacked a soundand substantial basis in the record. In awarding the mother custody, the Family Courtgave undue weight to its finding that the mother would be more likely than the father tofoster a meaningful relationship between the subject children and the noncustodialparent. Furthermore, the Family Court failed to give sufficient weight to the forensicmental health evaluation, which indicated that the mother was not suitable for physicalcustody of the children and to its own finding that it was in the children's best interestsfor them to remain away from Sherlock at all times (cf. Matter of Summer A., 49 AD3d 722, 726-727 [2008]).Under the totality of the circumstances, including the founded concerns with respect toSherlock and the attendant risk his relationship with the mother posed to the safety andwell-being of the subject children, the best interests of the children would be served byawarding the father sole physical custody (see Eschbach v Eschbach, 56 NY2d at171).
Accordingly, we reverse the second order dated December 23, 2011, insofar asappealed from, grant the father's petition for sole physical custody of the subject children,deny the mother's cross petition for sole physical custody of the subject children, andaward sole physical custody of the children to the father. Since we deem it appropriatethat the mother enjoy liberal visitation, we remit the matter to the Family Court,Westchester County, for further proceedings to establish an appropriate visitationschedule for the mother and, thereafter, to issue a permanent visitation order. In theinterim, we deem it appropriate that, pending further order of the Family Court, themother shall have unsupervised visitation with the children the first three weekends ofevery month from Friday at 6:00 p.m. through Saturday at 7:00 p.m. and shall have theright to exercise mid-week dinner visits every Wednesday from after school or day careuntil 7:00 p.m., or other times as the parties may agree, provided that the children shallnever be left alone with Sherlock. Eng, P.J., Balkin, Roman and Miller, JJ., concur.